General Manager vs Manjula and Others

N.K. Patil, J.—These two appeals respectively by the Owner and the Claimants are directed against the same common judgment and award dated 15th June 2012, passed in MVC No. 17/2009, by the Senior Civil Judge, Motor Accident Claims Tribunal, Kadur, Chikmagalur District, (for short, ''Tribunal'').

While the owner has filed the appeal on the ground that, the Tribunal is not justified in fixing the entire negligence on the part of the owner, i.e. the South Western Railway; the claimants have filed the appeal, seeking enhancement of compensation on the ground that the compensation of Rs. 31,63,328/- awarded by Tribunal is on the lower side and the impugned judgment and award passed by Tribunal is liable to be modified.

The facts of the case as stated in the claim petition are that, at about 0:45 hours (mid-night), on the ill-fated day, i.e. on 23-09-2008, when the deceased and others were traveling in the Tata Sumo bearing Registration No.KA-09/P-74, from Sagar towards Arasikere, near Byagadehalli Gate, they met with an accident on account of rash and negligent driving by the driver of the Lorry bearing Registration No.KA-13/A-558, which was proceeding towards Kadur. Due to the impact, the deceased and others sustained grievous injuries and unfortunately, the deceased succumbed to the said injuries on the spot.

The claimants herein are none other than the wife, minor daughter and parents of deceased Nagaraj S. Mannur in the road traffic accident. It is the case of the claimants that, deceased was the only earning member in the family and on account of his death, the family is in total financial distress and are left with no support and therefore, they have to be compensated reasonably.

On account of the death of the deceased Nagaraj S. Mannur in the road traffic accident, the claimants filed the claim petition before the Tribunal, seeking compensation of a sum of Rs. 1,00,00,000/- against the owners and Insurers of both the offending vehicles and the same was numbered as M.V.C. No. 17/2009. The said claim petition along with other claim petitions, arising out of the same accident had come up for consideration before the Tribunal on 15th June, 2012. The Tribunal, after considering the relevant material available on file and after appreciation of the oral and documentary evidence, allowed the claim petition in part, awarding compensation of a sum of Rs. 31,63,328/-, with 6% interest per annum, fixing entire negligence on the part of the owner of the Tata Sumo bearing Registration No.KA-09/P-74 and directing the said respondent to indemnify the award. Being aggrieved by the contributory negligence fixed on the part of the owner, i.e. South Western Railway, on the ground that the same is on the higher side and liable to be modified, the claimants are in appeal before this Court, seeking enhancement of compensation, on the ground that the compensation awarded by Tribunal is on the lower side and liable to be enhanced substantially.

We have heard learned counsel appearing for owner and learned counsel appearing for claimants, gone through the grounds urged in the memorandum of appeals filed by owner as also claimants carefully and perused the impugned judgment and award passed by Tribunal, including the original records placed before us.

Shri. B. Papegowda, learned counsel appearing for owner/South Western Railway vehemently submitted that, the Tribunal committed grave error and material irregularity, resulting in serious miscarriage of justice, in fixing entire negligence on the part of the owner of the Tata Sumo, when in fact, the drivers of both the vehicles contributed to the occurrence of accident and also considering the fact that Tata Sumo is a lighter vehicle when compared to Lorry, which is a heavy vehicle. Therefore, the reasoning given by the Tribunal at paragraphs 23 and 28 of its judgment is contrary to the evidence on record and liable to be modified, fixing reasonable negligence on the part of the drivers of both Tata Sumo and Lorry and modifying the 100% negligence fixed on the part of the owner/South Western Railway. To substantiate the said submission, he is quick to point out and take us through Ex. R3-photograph and Ex. R5-rough sketch and submit that the said two documentary evidence clearly establish beyond all reasonable doubt that there is some negligence contributed by the driver of the Lorry also towards occurrence of accident. The Tribunal, placing heavy reliance on Exs. R3 and R4 has come to the conclusion that the accident has taken place because of the rash and negligent driving by the driver of Tata Sumo only. The said finding is contrary to the material on record and fixing entire negligence on the part of the owner is liable to be modified, by fixing some percentage of negligence on the part of the driver of Lorry also.

As against this, Shri. N. Vageesh, learned counsel appearing for claimants vehemently submitted that the Tribunal, after critical evaluation of the oral and documentary evidence available on file has specifically recorded a finding of fact at paragraph 29 of its judgment, holding that the accident has occurred on account of rash and negligent driving by the driver of Tata sumo and fixed the entire negligence on the part of the owner of the said Tata sumo, i.e. the South Western Railway. The reasoning given by Tribunal for arriving at the said conclusion is just and proper and the impugned judgment and award does not call for any interference regarding fixing entire negligence on the part of the owner of the Tata Sumo.

However, so far as quantum of compensation awarded is concern, learned counsel appearing for claimants vehemently submitted that, the Tribunal, grossly erred in not awarding reasonable compensation towards conventional heads, viz. loss of consortium, loss of estate, transportation of dead body and funeral expenses and the same is liable to be enhanced reasonably in the light of the judgment of the Hon''ble Apex Court in catena of decisions. Therefore, he submitted that the impugned judgment and award be modified by enhancing reasonable compensation.

After hearing the rival contentions of the parties, after perusal of the impugned judgment and award passed by Tribunal and after re-appreciation of the oral and documentary evidence available on file, the points that arise for our consideration in these two appeals are:

"I] Whether the Tribunal is justified in fixing the entire negligence on the part of the owner of the Tata Sumo bearing Registration No.KA-09/P-74?

II] Whether the quantum of compensation awarded by Tribunal is just and reasonable?"

Re-Point I] : Occurrence of accident at 00:45 hrs. in the midnight on 23-09-2008 and the resultant death of the deceased Nagaraj S. Mannur in the road traffic accident between the two vehicles, i.e. Tata sumo and Lorry are not in dispute. It is also not in dispute that the claimants are none other than the wife, minor daughter and parents of deceased.

It is further not disputed that both the vehicles were covered under Insurance policies. After critical evaluation of the oral and documentary evidence available on file, it is seen, the Tribunal, after careful evaluation of the oral and documentary evidence available on file, particularly, Exs. R3 and R4, the certified copies of the photographs has observed that the said documents clearly show that Tata sumo vehicle had over taken the Lorry from its back side and dashed to the middle right side of the lorry and is on the right side of the road and it appears that the said Tata sumo vehicle in order to over take the lorry had been half way of the lorry and suddenly that itself hit the lorry and under the said circumstances, it is inferred that the driver of the lorry was not rash and negligent. The Tribunal further observed that the standard of proof is not the proof beyond reasonable doubt, it is on a balance of probabilities and what is to be established is actionable negligence. Accordingly, it came to the conclusion that the accident has taken place due to rash and negligent driving by the driver of Tata Sumo bearing Registration No.KA-09/P-74 and thus fixed the entire liability on the part of the owner of the said Tata Sumo, the appellant herein, i.e. South Western Railway to indemnify the award amount. Therefore, we hold that the reasoning given by the Tribunal for fixing entire negligence on the part of the owner of the Tata Sumo vehicle is just and proper and does not warrant interference and we accordingly, confirm the same and answer point No. 1] in the ''affirmative''.

Re-Point II] : So far as quantum of compensation awarded by Tribunal is concerned, occurrence of accident and the resultant death of deceased Nagaraj S. Mannur in the said accident are not in dispute. It is also not in dispute that the deceased was aged about 32 years as on the date of accident and working as an Inspector in Railway Protection Force, drawing salary of Rs. 23,298/- per month as per Ex. P11 - Salary Certificate.

After microscopic evaluation of the original records available on file, including the salary certificate at Ex. P11 and other material available on file, it is seen that the Tribunal has rightly assessed the monthly income of the deceased and added 50% towards his future prospects as he was aged about 32 years as per the decision of the Hon''ble Apex Court in Sarla Verma''s case (2009 ACJ 1298) and deducted 1/3rd towards the personal expenses of the deceased and adopting multiplier of ''16'' awarded compensation of Rs. 31,31,328/- towards loss of dependency. The same is just and proper and is upheld.

However, so far as compensation awarded towards conventional heads, i.e. loss of consortium, loss of estate, loss of love and affection and transportation of dead body and funeral expenses is concerned, we are of the considered view that a sum of Rs. 32,000/- awarded under the conventional heads is on the lower side and as per the decision of the Apex Court in Sarla Verma''s case (supra), we award a sum of Rs. 50,000/- under the conventional heads. Thus the total compensation towards conventional heads works out to Rs. 50,000/- as against Rs. 32,000/- awarded by Tribunal and there would be enhancement of compensation by a sum of Rs. 18,000/- with 6% interest per annum from the date of petition till the date of realization.

Since the entire negligence fixed by the Tribunal on the owner of Tata Sumo bearing Registration No.KA-09/P-74, the South Western Railway is directed to deposit the remaining compensation and also enhanced compensation of Rs. 18,000/- with interest at 6% p.a. from the date of petition till the date of realization.

In the light of the facts and circumstances of the case, as stated above, the appeal filed by the owner/South Western Railway is dismissed as devoid of merits and the appeal filed by claimants is allowed in part.

"The impugned common judgment and award dated 15th June 2012, passed in MVC No. 17/2009, by the Senior Civil Judge, Motor Accident Claims Tribunal, Kadur, Chikmagalur District, is hereby modified, only in so far as it relates to quantum of compensation awarded by Tribunal towards conventional heads;

The entire negligence fixed on the part of the owner of Tata Sumo bearing Registration No.KA-09/P-74 remains unaltered and is hereby confirmed;

The total compensation awarded by Tribunal towards conventional heads is hereby modified, awarding compensation of Rs. 50,000/- as against Rs. 32,000/- awarded by Tribunal. Thus, there would be enhancement of compensation by a sum of Rs. 18,000/- with 6% interest per annum from the date of petition till the date of realization.

As held above, the owner of the Tata sumo bearing Registration No.KA-09/P-74 is directed to deposit the remaining compensation and also the enhanced compensation of Rs. 18,000/- with interest at 6% p.a. from the date of petition till the date of realization, within a period of three weeks from the date of receipt of a copy of this judgment;

The apportionment and the manner of disbursement ordered by Tribunal in respect of the compensation awarded by it remains undisturbed;.

The enhanced compensation of Rs. 18,000/- with interest at 6% p.a. to be deposited by the owner of Tata Sumo, the South Western Railway, shall be released in favour of the first claimant/wife of deceased-Smt. Manjula, immediately;

The amount, if any, in deposit by the appellant in M.F.A. No.7617/2012 is directed to be transmuted to the jurisdictional Tribunal, forthwith.

Office to draw award, accordingly."